Allahabad High Court
Junaid vs State Of U.P. on 2 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54517 of 2019
Applicant :- Junaid
Opposite Party :- State of U.P.
Counsel for Applicant :- Anoop Trivedi (Senior Adv.),Irfanul Huda
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Supplementary affidavit filed today in Court by learned counsel for applicant is taken on record.
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.812 of 2017, under Sections 147, 148, 149, 307, 323, 504, 506, 302 IPC, registered at Police Station Lisari Gate, District Meerut.
3. As per contents of FIR, an altercation had ensued between brother of informant and the applicant alongwith co-accused on 6.09.2017 at about 07.45 P.M. during the course of which applicant alongwith one Anas are said to have fired upon deceased Ahtesham who having sustained serious injury is said to have passed away.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is also submitted that the role of firing had been attributed to two persons whereas there is single gun shot injury in the head of deceased. It is submitted that in his statement recorded under section 161 Cr.P.C., the same story has been reiterated with two persons having been assigned the role of firing upon the deceased. As such, it is submitted that at this stage it cannot be ascertained as to who was the author of the fatal shot. It is also submitted that co-accused Anas has already been admitted to bail by coordinate bench of this Court passed in Criminal Miscellaneous Bail Application No.26901 of 2018. It is also submitted that applicant has spent more than five years in jail as an under trial since 09.09.2017 and as per certified copy of order-sheet brought on record by means of supplementary affidavit, examination of only P.W.1 is ongoing although there are a total of 14 prosecution witnesses as per charge-sheet.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that specific role of firing has been assigned to the applicant with only a single gun shot injury which is the fatal wound and as such the applicant has been rightly apprehended on that basis.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that in the FIR as well as in the statement of informant under section 161 Cr.P.C., two persons have been assigned the role of firing upon the deceased whereas in the postmortem report, there is a single gun shot injury and as such at this stage it cannot be determined as to who is the author of the fatal injury. It also transpires from record that applicant is in jail since 09.09.2017 as an under trial and as yet as per certified copies of order-sheet, examination of only P.W.1 is ongoing with 13 more prosecution witnesses remaining to be examined.
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant, Junaid, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Trial court is directed to expedite the trial without granting undue adjournment.
Order Date :- 2.12.2022
Subodh/-
